The legislation that would remake Israel

The legislation that would remake Israel

As MKs consider a bill that could reinstate laws rejected by the Supreme Court, here is a guide to the recent barrage of ostensibly ‘anti-democratic’ bills.

In the past three years, Israel’s parliament has been the arena for a running legislative skirmish that some see as no less than a struggle for the soul of the state.

Last weekend, in the latest battle in this war, Justice Minister Yaakov Neeman proposed a bill that would allow lawmakers to reinstate laws that are struck down by the Supreme Court. If passed, the bill would enable 65 of the Knesset’s 120 members to re-legislate laws that the country’s highest legal body has declared unconstitutional. Politicians from the right applauded the initiative, while left-wingers and human rights activists slammed it.

The Knesset’s own legal advisor, Eyal Yinon, opposes the bill, pointing out that an average ruling coalition in Israel includes more than 65 MKs, and thus “would not be dependent on seeking a wider consensus” with the Knesset’s other factions. In other words, if the bill passes there would no longer be any effective check to the government’s power.

It is still unclear whether the bill will actually become law. Whatever its fate, it is only one in a series of recent legislative initiatives to be labeled by some as anti-democratic. Indeed, critics say, no government in Israel’s history has tried to pass so many laws that merit this description. These bills have targeted freedom of the press, Israel’s Arab minority, and left-wing NGOs.

“There were bad laws even three years ago, before this coalition,” said Hagai El-Ad, the executive director of the Association for Civil Rights in Israel. “But what we see in the Knesset now we haven’t seen in the past. There were [anti-democratic] initiatives in the past, and some of them became law, but such a barrage of bills, that is something that no Knesset has seen before.”

Some of these controversial proposals have been voted into law. Others were temporarily shelved or entirely rejected. The fate of others, like Neeman’s, is still unknown. With lawmakers making frequent headlines with new controversial legislation, it is not easy to keep track. Here’s a guide to the status of some of the most discussed “anti-democratic” pieces of legislation.

Bills that have become laws

The Nakba Law – Proposed by Yisrael Beitenu MK Alex Miller. Voted into law on March 22, 2011:

The “Budget Foundations Act” allows the Finance Ministry to cut funding for municipalities, organizations, and public institutions “due to activities against the state’s principles.”

Such activities, according to the law, include “negating the existence of the State of Israel as a Jewish and democratic state” and “marking Israel’s Independence Day or establishment anniversary as a day of mourning.” It also outlaws any “act of defilement or physical contempt against the state’s flag or national symbol.” This means that any municipality or public organization that marks — as many Israeli Arabs do — the “Nakba,” or “catastrophe,” which is the term many in the Arab world use for Israel’s establishment, can lose all government funding. Critics see the law as an impingement on freedom of speech.

The Admissions Law – Proposed by MKs David Rotem (Yisrael Beitenu), Israel Hasson (Kadima), Shai Hermesh (Kadima). Voted into law on March 22, 2011:

This law allows the acceptance committees of small communities, primarily in the Negev and Galilee, to reject candidates if they are “not right for social life in the community” or if they “do not match the socio-cultural fabric of the settlement and there is reason to assume they might harm it.” In other words, the law allows a Jewish community to reject a would-be member because he or she is Arab — though the Supreme Court ruled in a landmark 2000 decision that this was illegal.

The law, according to the Association for Civil Rights in Israel, “primarily intends to deny ethnic minorities’ access to Jewish communities … offering the possibility to reject anyone who does not fit in with the committee’s positions, religion, political views, and so on.”

The Boycott Law – Proposed by Likud MK Zeev Elkin. Voted in law on July 11, 2011:

This law stipulates that every Israeli who publicly calls for a boycott against the state of Israel is liable to pay punitive damages – “independent of the actual damage caused.” In its key sentence, the law defines a boycott as “deliberately avoiding economic, cultural or academic ties with another person or body solely because of their affinity with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage.” This means that anyone calling for a boycott of settlement products can be sued, even if the boycott call has no effect.

The Infiltration Law – Proposed by the Netanyahu government. Voted into law on January 9, 2012:

This law — “one of the harshest and most dangerous bills presented to the Knesset in recent years,” according to ACRI — is meant to scare off foreign refugees and asylum seekers and Israelis trying to help them. It stipulates a three-year minimum imprisonment for so-called infiltrators, and in some cases allows them to be imprisoned indefinitely. The law, which will be in effect for three years, at which time the government is to examine its impact on hampering illegal immigration, also stipulates stiff penalties for Israelis who help illegal migrants.

Bill that has been given preliminary approval and is waiting for final ratification

The Libel Law – Proposed by MKs from Kadima, Likud, Habayit Hayehudi and Yisrael Beitenu. Passed first reading on November 21, 2011:

An amendment to the Anti-Defamation Law understood by critics to be a tool to stifle free speech, this bill would increase the punitive damages the author of a libelous statement has to pay by a factor of six. Currently, the maximum penalty is NIS 50,000, and if this bill passes the necessary second and third readings, a libel victim will be able claim NIS 300,000 — even without proof of damages. If the reporter did not request a response from the subject before publication, the court may order compensation of up to NIS 1.5 million, again without proof of damages.

Despite having the support of four different parties, the bill was harshly criticized by some opposition lawmakers: “This is nothing but legislative bullying meant to shut people up,” one MK said. A different MK was quoted as saying this law “will push us back to the dark ages.”

Bills that have been proposed but are currently frozen

A number of bills were proposed by coalition lawmakers but not ratified into law due to internal and international pressure. But according to ACRI’s El-Ad, the fact that these bills were even considered sends a clear message to those targeted — such as Arab citizens, left-wing NGOs and other groups not favored by the current government. “Once they’re on the shelves, they’re there to stay — they can be unfrozen at the next politically convenient moment,” he said. “It has a chilling effect, even if these bills do not become law. They set a certain tone, they establish an a certain atmosphere — people get the drift of things.” The government freezes a bill once it becomes clear that it will not easily pass, since once a bill is rejected by the Knesset it cannot be immediately resubmitted.

The Approval of Supreme Court Justices by the Knesset Law – Proposed by Likud MKs Yariv Levin and Zeev Elkin. This bill was never presented to the Knesset because it failed to get government support:

This bill seeks to establish a procedure that would have the Knesset interview and approve every justice nominated to the Supreme Court — effectively establishing a large measure of government control over the court.

“Public hearings before an appropriate parliamentary committee of candidates for judicial positions and for the President of the Supreme Court are an accepted procedure in various countries, particularly in the United States,” the MKs write in the bill’s explanatory note. Opponents of this bill say the Supreme Court’s makeup should not be linked to a majority in the Knesset if Israel wants to guarantee an independent and impartial judiciary. If passed, this bill would “undermine the independence of the Supreme Court and the principle of the separation of powers,” ACRI’s chief legal counsel, Dan Yakir, wrote in a letter to Justice Minister Neeman.

The NGO-Funding Law – Proposed by Ofir Akunis (Likud) and Faina Kirshenbaum (Yisrael Beitenu). The bill is currently not being promoted:

This bill, a hybrid of two separate laws that almost passed before internal and international pressure forced the prime minister to shelve them, would force non-governmental organizations to pay a 45-percent tax on all donations from foreign states unless they receive a special waiver from the Knesset. Many NGOs, especially on the left, receive the lion’s share of their annual budget from European governments and would be crippled if that funding were nearly halved. Most right-wing NGOs are funded by private citizens, particularly in the US, and so would not be affected.

In December, Attorney General Yehuda Weinstein warned the government that such legislation would be “unconstitutional” and that if passed in the Knesset he would not defend it in the High Court of Justice.

The Pledge of Allegiance Law – Proposed by MKs David Rotem and Robert Iliatov (Yisrael Beitenu). On June 6, 2010, the Ministerial Committee on Legislation decided to not support the bill:

This bill would require all lawmakers to pledge allegiance to the state of Israel as a Jewish, Zionist, and democratic state, to its laws, and to its symbols. Even the government did not support this private bill. A similar law, presented by Danny Danon (Likud), wouldenable a majority of 80 MKs to oust another MK if he or she expressed opposition to Israel as a Jewish and democratic state, incited to racism, or supported an armed struggle against the state. The government did not approve that bill either.

The Anti-Veil Law – Proposed by Kadima MK Marina Solodkin. On January 30, 2011, the Ministerial Committee on Legislation decided to not support the bill:

Similar to the French “Burqa Law,” this bill, officially titled “Penalty Code (Amendment – Prohibition on Covering the Face in Public Places),” would prohibit people from covering their face in public or forcing other people to do so. Offenders would be fined or imprisoned.

So where has this slew of ostensibly anti-Democratic bills come from?

According to Michael Partem, the vice chairman of the Movement for Quality Government in Israel, these initiatives are a reaction to the fact that during the last few decades the judicial branch of government in Israel grew in prominence. “This trend has been led by a relatively activist Supreme Court bolstered by the basic laws passed by the Knesset in the 1990s,” he said. His organizations favors the trend, Partem said, as it has increased constitutional control of government excess and led to improved governance.

“The government and the Knesset, however, are interested in a rollback, both on constitutional and ideological grounds. Each side claims to be acting in the name of democracy,” Partem said, “and to a certain degree each side is right.”